Attorney-client privilege rules change

It may not happen this way very often, but a bar review article has just sparked the Ohio legislature to change one of the oldest attorney-client privilege rules in the state.

The privilege rule that the legislature amended at the end of last year, “traces itself back to the 1850s,” said David Alden. The Jones Day attorney authored the article “Voluntary Client Testimony as a Privilege Waiver: Is Ohio’s Law Caught In A Time Warp?,” which was published in the January 2011 edition of the Cleveland State University Law Review.

Prior to the change in Ohio Revised Code 2317.02(A)(1) (the language changed; the number did not), Ohio's attorney-client privilege statute stated that the attorney-client privilege would prevent an attorney from testifying in deposition or at trial except "by express consent of the client or… if the client voluntarily testifies,… the attorney may be compelled to testify on the same subject."

Although very inconsistently, Alden said some Ohio courts interpreted this rule to mean that, if a client testified to anything, at any time *including depositions), that the attorney could be compelled to testify.

This ancient language stems from a time when Ohio had an “interested witness rule,” said Alden, which provided that uncontradicted testimony from a party or other interested witness was not given the same weight as that of an uninterested party. That interested witness rules was done away with at the same time as this now-anachronistic was adopted, he said.

Alden said that there were two lines of decisions that, in following this rule for the last couple of centuries, went against common sense.

The first is an Ohio Supreme Court line over 150 years old. The court has held in various cases that the statutory privilege is waived whenever a client "voluntarily testifies" – not just when the client voluntarily testifies about the substance of a privileged attorney-client communication.

This was the primary problem, according to both Alden and Quirk—coupled with the fact that few attorneys were even aware of this implication in the old rule. This waiver could even take place during a deposition, in some offhanded remark, said Alden.

Second, the Supreme Court of Ohio has held repeatedly that "R.C. 2317.02(A) provides the exclusive means by which privileged communications directly between an attorney and a client can be waived." This brought holdings that, for instance, the statutory attorney-client privilege would not be waived "even when the client has told a third person what was discussed."

Both of these lines of decisions, said Alden, were contrary to common sense and to Ohio and federal courts' application of the attorney-client privilege at common law.

The new language, written by Alden, brings Ohio law current with national rules, Alden said.

The language of R.C. 2317.02(A)(1) now no longer states that an attorney may be compelled to testify if his or her client "voluntarily testifies." Instead, the statute now states that an attorney may be compelled to testify if his or her client, "voluntarily reveals the substance of attorney-client communications in a non-privileged context[.]"

So now, divulging a privileged attorney-client communication to a third person will waive the statutory privilege, but the testimony of a client will not otherwise compel the lawyer to testify.

Frank Quirk was the chair of the Ohio State Bar Association subcommittee that wrote the OSBA recommendation to the Ohio legislature.

The background is this,” said Quirk. “When the OSBA Legal Ethics Committee discovered Alden’s article, a subcommittee was appointed to look into the issue. We met with Alden and did our own review, and settled on making the recommendation that adopted the most simple solution as having the best chance to get through the legislature. The OSBA House of Delegates adopted the recommendation and endorsed a bill to be presented to the legislature. On the last day of the 21012 session, the bill was adopted and the statute amended to eliminate Ohio’s anomaly.”

Alden said that the “simplest” approach was his least favorite, although he was not surprised that it was the one that was eventually adopted. “I preferred that the entire statute be re-written,” Alden said.

“The obvious question,” said Quirk, “is this: why didn’t the matter get more exposure before Alden’s article? I think two reasons. First, most lawyers didn’t know about it, and second, those who did know about it faced what Alden calls in his article ‘mutually assured destruction’.”